1- MAIN CRITERIA FOR ISSUANCE OF AN E-2 INVESTOR VISA
A/ NATIONALITY OF THE COMPANY E-2 (9 FAM 41.51 N2)
The possibility to apply for an E-2 visa arises from Treaty of Commerce and Navigation which are bilateral treaties entered into between the United States and some foreign countries. More than 80 countries signed a Treaty of Commerce and Navigation with the United States, including the United Kingdom, France, Canada, Belgium, Switzerland, Colombia, etc. The treaty investor must, whether an individual or business, possess the nationality of the treaty country. The nationality of a business is determined by the nationality of the ultimate individual owners of that business. The E-2 applicant must have the same nationality.
B/ INVESTMENT MUST BE SUBSTANTIAL (9 FAM 41.51 N10)
The E-2 investor must invest a substantial amount in the company. A substantial amount should cover start-up costs of the US business. The investment can take many forms including purchase of products/services, purchase/lease (deposit and rent paid in advance), legal fees, marketing, website, etc. The investor can also buy an existing business. There is no legal minimum to invest but the higher the investment the better. "Investment" covers the amount actually spent on setting up the business and not just the money transferred to the United States.
C/ THE E-2 COMPANY MUST BE A REAL, ACTIVE AND COMMERCIAL ENTERPRISE (9 FAM 41.51 N9) AND MUST BE MORE THAN MARGINAL (9 FAM 41.51 N11)
The investor must establish a real business that will make a significant economic contribution to the local community. This means that the activity should generate an income which will exceed what is necessary to support the E-2 Investor and his/her family. This also means that the company will create jobs for American workers. It is very important to prepare a detailed business plan over 5 years to demonstrate to the immigration services the project has a good chance of succeeding.
2- POSITIONS AND RESPONSIBILITIES OF E-2 VISA APPLICANTS
Applying for E-2 is opened to foreigners who will have invested in the E-2 company and who will come to the U.S. to control and direct their investment (E-2 Investors). It is also possible to apply for an E-2 visa for essential employees of the same nationality of the main investor who will occupy Managers/Supervisors or specialist positions (E-2 employees). These E-2 employees do not have to have invested in the E-2 company. Managers/Supervisors will manage a department or company branch and Specialists will occupy positions that will require essential qualifications. Candidates should have the skills to fill the positions and will need to actually prove that they have the experience and the required qualifications for these positions.
3- LENGHT OF THE E-2 VISA
The maximum duration of the E-2 visa is determined by the applicable Treaty of Commerce and Navigation. Most Treaties provide for maximum visa duration of 5 years, renewable indefinitely - that is the case for the Treaty with Canada, France, Spain and Belgium. The Treaty with Switzerland provides for a maximum duration of 4 years (renewable indefinitely). There are also unusual situations: the Treaty with Mexico provides for a maximum duration of 12 months (renewable indefinitely) and the Treaty with Ukraine provides for duration of 3 months (usable twice only). Length of E-2 status upon entry will not follow the total duration of the visa and will be 2 years for each entry.
4- PROCEDURE FOR APPLYING FOR E-2 VISA OR E-2 STATUS
It is usually possible to submit an E-2 visa application directly to a U.S. consulate abroad. It is also possible, if the candidates have valid status in the U.S. to apply for a change of status to E-2 status before the United States Citizenship and Immigration Services (USCIS).
5- WHAT TO DO AT THE EXPIRATION OF AN E-2 VISA?
If conditions are met and if the Treaty allows it, it will be possible to renew the E-2 visa at a consular post abroad or extend the E-2 status with the United States Citizenship and Immigration Services (USCIS). There is no possibility at the present time to automatically transform an E-2 visa into a Green Card (legal permanent residence). However, being under E-2 status will not prevent filing an application for legal permanent residence based upon another procedure (EB-1 EB-2, EB-5, etc.).
6- FAMILY OF E-2 VISA HOLDERS
Spouses and children (under 21 years/unmarried) of E-2 visa applicants may be included in the visa application as dependents. Spouses will be allowed to apply for work authorization in the U.S. Children will be allowed to go to school and study in the United States until the turn 21 - after that they will have to have their own visas. Children will not be allowed to work in the United States under E-2 status.